JUDGMENT
V.K. Agrawal, J.
1. This appeal is directed against the judgment and decree dated 11-12-1995 in Civil Suit No. 36-A/94 by District Judge, Khandwa, granting decree of divorce in favour of respondent/husband.
2. Undisputably, the parties are Hindus and were married in the year 1986 in accordance with the rites and customs applicable to them. The parties thereafter lived together for some time and the appellant gave birth to a daughter. The appellant was, however, living separately from the respondent/husband for more than two years prior to his filing of present petition for divorce.
3. The respondent/husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’ for short) against the appellant/wife seeking a decree for divorce on the ground of ‘cruelty’ and ‘desertion’.
4. It was averred by the petitioner/ respondent that he was an L.D.C. and had limited income. After his marriage with the appellant, he made all efforts to meet the demands of his wife, but she did not feel satisfied. The appellant used to pressurise her husband-the respondent, to go to her parents’ home and to start some business there. When the respondent declined to accede to her wishes as above, the appellant wife attempted to commit suicide. She used to threaten the respondent that she would involve the latter in dowry case. She would not cook food for the respondent. She would throw away the articles of the household. The appellant also tried to administer poison to the respondent and left his house, without intimating him. When the respondent went to bring her back, she refused to come. However, later on, due to the intervention of common relatives, the appellant came back to the house of the respondent. However, the appellant, after coming back, again started quarrelling with the respondent and again went to her parents home without permission and intimation to the respondent. The respondent went to bring her back, but the appellant/wife refused to come back with him. The respondent was insulted and sent back. The appellant was living separately from her husband the respondent, without any reasonable cause for more than two years before filing of the petition and has thus deserted him.
5. The appellant/wife in her written statement denied the above allegations. She averred that she was always and willing to live with her husband the respondent. However, since the mother and the brother of the respondent used to quarrel with her and assault her, therefore, she apprehended danger to her life. The appellant further averred that she was not willing to live with her mother-in-law and brother-in-law. Since she was being maltreated at her matrimonial home, she came back to her parents’ home. She was willing to live with her husband, the respondent separately, but not along with her mother-in-law and brother-in-law. She is living in her parents’ home since February, 1992, as she was turned out by the respondent and her in-laws. She, therefore, prayed that the petition for divorce be dismissed.
6. The learned trial Court framed issues as to whether the respondent/husband treated the appellant/wife with ‘cruelty’ and whether the appellant is living separately for more than two years prior to the filing of the petition, without any reasonable cause. The learned trial Court recorded a negative finding on the issue of ‘cruelty’; but held that the appellant is living separately from her husband, the respondent for more than 2 years, without any reasonable cause and has thus deserted him. The decree for divorce was accordingly granted on that ground.
7. The learned counsel for the appellant/ wife has mainly urged that the appellant was aggrieved by the behaviour of her mother-in-law and brother-in-law, who misbehaved with her and assaulted her due to which she was forced to leave her matrimonial home. Therefore, there was sufficient cause for her to live separately and it could not be said in the circumstances of the case that she has deserted her husband. It has been urged that the appellant is still ready and willing to live with her husband-the respondent, if he is willing to live separately from his mother and brother.
8. As against this, the learned counsel for the respondent has urged that the mother of the respondent is old and ailing. The respondent cannot be expected or forced to live separately with the appellant leaving his mother and other family members. The request in that regard of the appellant/wife being unreasonable, was not accepted by him. Since the appellant has been refusing to live with the respondent despite efforts made by him before the filing of the petition, while there was no reasonable cause to do so, therefore, the decree on the ground of desertion was rightly granted in his favour.
9. In this case, it is not in dispute that the respondent/husband is living with his mother and brother. The appellant and the respondent had lived together till January, 1992 whereafter, she is living separately. The averment of the appellant is that she was being maltreated by the mother-in-law and the brother-in-law and hence she was not willing to live with them. However, she is willing to live with her husband, provided he lives separately from his mother and brother.
10. The respondent Deepak (A.W. 1) has stated that the appellant Urmila deserted him from January, 1992. He has denied that his mother or brother used to assault or misbehave with the appellant.
11. Appellant Urmila (NAW 1) has, however, stated that she was being maltreated by the respondent as also his mother and brother. She further states that she is ready and willing to live with her husband, the respondent, but she would do so only when her husband lives separately from his mother and brother. She has stated that the respondent had assaulted him and turned her out of the house and thereafter did not come to take her back. Gokul (NAW 2) examined by the appellant/wife has also stated that the brother and mother of the respondent would quarrel with the appellant and used to turn her out of the house. Dineshchand (NAW 3) has stated that the appellant Urmila told him that on the instigation of his mother, her husband used to beat her.
12. It may be noticed that the trial Court had endeavoured for reconciliation between the parties. Order-sheet dated 25-11-1994 of the trial Court would indicate that the appellant was willing to live with her husband only on the condition that they lived separately from the mother and brother of the respondent. The efforts of reconciliation, therefore, could not materialise.
13. Therefore, it appears that the appellant was not averse to living with the respondent. However, she would do so only if the respondent/husband lives separately with her. She was not willing to live with the mother and brother of the respondent. It also appears that the respondent/husband was not willing to leave his mother and brother. The mother of the respondent is an old lady, aged about 70 years. Thus, a deadlock exists, and the husband/respondent appears to have preferred living with his mother rather than with the appellant, his wife. The respondent/husband may be well intentioned in doing so. However, the question is whether the appellant/wife can be said to have deserted the husband, in the above facts and circumstances of the case?
14. It is well settled that the burden to prove desertion lies on the respondent/husband, who filed the petition for divorce. The word ‘desertion’ has been defined in explanation to Section 13(1) of the ‘Act’, which reads as below :–
“Explanation. — In this sub-section, the expression “desertion” means the desertion of the petitioners by the other party to the marriage without reasonable cause and with-out the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”
15. Thus desertion as per explanation of Section 13 of the ‘Act’ implies intentional and permanent abandonment of one spouse by the other without his or her consent and without reasonable cause. Therefore, to constitute desertion, following elements are necessary :–
(1) The factum of separation;
(2) Intention to bring the cohabitation permanently to an end;
(3) Absence of consent;
(4) Absence of conduct giving reasonable cause to quit the matrimonial home;
Therefore, the question of desertion cannot be decided by merely ascertaining as to which party left the matrimonial home, and the person who actually withdrew from cohabitation is not necessarily a deserting party. It may be that the party withdrawing from cohabitation may have been forced by the conduct of the other to leave the home. 16. In the instant case, it is borne out from the material and evidence on record that the appellant wife was aggrieved because she was being maltreated by her mother-in-law and brother-in-law. She also asserts that she was turned out from the house by the respondent/husband, who neglected her thereafter. Thus, the appellant/wife was forced to live away from her husband, the respondent, on account of the maltreatment that she received at the hands of the respondent’s relatives in her matrimonial home. In the circumstances, her conduct of living separately from her husband-the respondent, cannot be said to be unreasonable or without any proper cause.
17. It also appears that the husband was not willing to leave his mother and brother as was the desire and demand of the appellant/wife. He may also have justifiable cause for doing so. All the same, the wife, in the circumstances of the case, cannot be accused of having deserted her husband-the respondent. She cannot be expected to live :under constant torment and to suffer persistent misbehaviour of her inlaws. It does not appear that the appellant/wife wants to repudiate permanently her relationship with the respondent/husband. Her desire and demand of living peacefully and independently with her husband in the circumstances cannot be branded as unnatural or unreasonable. In the circumstances, even if she is living separately from her husband, that by itself would not establish that she has ‘deserted’ her husband.
18. Therefore, in the foregoing circumstances, living separately by the appellant/ wife cannot be said to be without reasonable cause. Hence, simply because the wife is living separately for more than two years from her husband, the respondent, it would not confer a ground to the husband/respondent to seek a decree for divorce under Section 13(1)(ib) of the ‘Act’.
19. In Teerth Ram v. Smt. Parvati Devi, AIR 1995 Raj 86, the wife demanded a separate home and wished to live independently with her husband. It was observed in that case that the wife had no intention to break the matrimonial home and that she wanted her husband to establish an independent matrimonial home where she would live with him. It was, therefore, held that wife cannot be considered to have deserted the husband without sufficient reasons.
20. Similarly, in Om Prakash v. Smt. Rajni, AIR 1988 Delhi 1078, it was observed that it is not that every time a wife says that the husband should live separately from his mother and the husband refused to do so, it would be an unreasonable behaviour on the part of the wife and that it would amount to cruelty.
21. In the facts and circumstances of the instant case, since there was no ‘animus deserandi’, the wife cannot be said to have deserted her husband. In the circumstances of the case, it does not appear that the appellant/wife had any intention to bring the cohabitation with her husband-the respondent, permanently to an end. Therefore, a decree for divorce does not appear to be justified.
22. Accordingly, the appeal is allowed. The Judgment and decree granting divorce between the parties is hereby set aside. There shall, however, be no order as to costs.